NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 11-3669
___________
AKHI RAHEEM MUHAMMAD,
Appellant
v.
COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA;
COMMONWEALTH COURT OF PENNSYLVANIA;
SUPREME COURT OF PENNSYLVANIA;
PENNSYLVANIA SUPERIOR COURT
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 09-cv-01255)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 11, 2012
Before: SLOVITER, SMITH and COWEN, Circuit Judges
(Opinion filed: May 15, 2012)
___________
OPINION
___________
PER CURIAM

Appellant Akhi Raheem Muhammad, proceeding pro se, appeals from the District
Courts order granting the defendant-appellees motion to dismiss Muhammads
complaint under 42 U.S.C. 1983. For the reasons that follow, we will affirm in part,
vacate in part, and remand for further proceedings.
I
In July 2008, Muhammad -- an experienced litigant -- filed in the United States
District Court for the Eastern District of Pennsylvania a complaint under 42 U.S.C.
1983, alleging that some 200 defendants violated his civil rights. He sought, inter alia,
permanent injunctive relief requiring the Pennsylvania state courts to address the needs of
disabled litigants, as well as damages and court costs. As Judge Padova of the Eastern
District noted, Muhammads second amended complaint, which was nearly 70 pages
long, stemmed from at least seven discrete series of occurrences, including:
(1) a 2004 automobile accident in Pittsburgh and related
litigation in Allegheny County from 2004 to 2007; (2) the
issuance of two traffic citations in Millvale, Pennsylvania[,]
in 2005, and related litigation in Allegheny County from 2005
to 2007; (3) a legal malpractice lawsuit initiated in Allegheny
County in July 2005, and related litigation there from 2005 to
2007; (4) a second legal malpractice lawsuit initiated in
Allegheny County in September 2005 and related litigation
there from 2005 to 2008; (5) the revocation of [Muhammads]
car insurance and related litigation from 2007 to 2008; (6) the
forced removal of [Muhammads] kufi, a religious head
covering, at legal proceedings in the courtrooms of various
Allegheny County judges . . . between 2004 and 2008; and
(7) a 2009 lawsuit against Allegheny County Adult Probation
and Parole over some money [Muhammad] paid them to
secure the release of his incarcerated nephew.
2

D. Ct. Doc. No. 88, 2-3 (internal citations omitted).

In particular, Muhammad alleged that most of the defendants, including the
Allegheny County Court of Common Pleas, the Pennsylvania Commonwealth Court, the
Pennsylvania Superior Court, and the Pennsylvania Supreme Court (collectively, the
Pennsylvania court defendants), violated the Americans with Disabilities Act (ADA),
42 U.S.C. 12101, et seq., and the Rehabilitation Act (RA), 29 U.S.C. 791, et seq.,
by repeatedly failing to reasonably accommodate his impaired vision at various stages
during his numerous state court lawsuits.1 Muhammad asked the courts to provide him
with a device which could magnify and project small text. According to his complaint,
Muhammad was unable to meaningfully participate in his Pennsylvania state court
hearings or review records at the courthouses because, with only a few exceptions, he
was not afforded equipment that would allow him to read documents relevant to his case.
Because Muhammad was proceeding in forma pauperis, Judge Padova screened
his complaint for legal sufficiency pursuant to 28 U.S.C. 1915(e), and concluded that
Muhammads ADA and RA claims against the four Pennsylvania state court defendants
sufficiently stated claims upon which relief could be granted. Muhammads ADA and
RA claims against the Pennsylvania state court defendants were then transferred to the

Muhammads complaint and his various other filings are riddled with invectives,
and he accuses all defendants of being racist, corrupt, asinine, anti-Islamic, and
prejudiced against the disabled.
3

United States District Court for the Western District of Pennsylvania, where venue was
proper.2
Upon transfer to the Western District, the Pennsylvania court defendants filed a
motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The
Magistrate Judge prepared a report and recommendation concluding that all of
Muhammads claims based on conduct occurring before July 30, 2006, i.e., more than
two years before he filed his complaint, were time-barred, and that he had not
demonstrated a series of continuing violations that would operate to toll the statute of
limitations. The report and recommendation further stated that, notwithstanding Judge
Padovas earlier analysis, Muhammads complaint failed to state a claim upon which
relief could be granted. The District Court agreed, adopted the Magistrate Judges report
and recommendation, and granted the motion to dismiss over Muhammads objections.
Muhammad then timely filed a notice of appeal.
II
We have jurisdiction pursuant to 28 U.S.C. 1291. We exercise plenary review
over the District Courts decision to dismiss Muhammads complaint. See Dique v. N.J.
2

The Eastern District then dismissed all other claims against the remaining
defendants, save for Muhammads ADA and RA claims against the Pennsylvania
Department of Insurance. Thereafter, the Pennsylvania Department of Insurance filed
a motion for summary judgment, which the District Court granted. See E.D. Pa. Civ.
No. 08-cv-03616 (order entered December 13, 2010). Muhammad appealed that
decision, but his appeal was dismissed for failure to file a brief. See C.A. No. 111075 (order entered April 27, 2011).
4

State Police, 603 F.3d 181, 188 (3d Cir. 2010). In deciding a motion to dismiss, all
well-pleaded allegations of the complaint must be taken as true and interpreted in the
light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.
McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and
quotation marks omitted). To withstand a Rule 12(b)(6) motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
At the outset, we note that, in his brief, Muhammad challenges a number of orders
issued by Judge Padova while his complaint was before the Eastern District. Muhammad
had the opportunity to challenge those decisions in his appeal at C.A. No. 11-1075, but he
failed to pursue that appeal. He may not now take a second bite at that apple.
Turning to the District Courts decision, the District Court first concluded that all
of Muhammads claims arising from conduct occurring before July 30, 2006, were timebarred. We agree. In 1983 cases, federal courts apply the state personal injury statute
of limitations, which is two years in Pennsylvania. See Smith v. Holtz, 87 F.3d 108, 111
& n.2; 42 Pa. Cons. Stat. Ann. 5524 (West 2004). A [] 1983 cause of action accrues
when the plaintiff knew or should have known of the injury upon which its action is
based. Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). The
determination of the time at which a claim accrues is an objective inquiry; the relevant
5

question is what a reasonable person should have known. See Barren v. United States,
839 F.2d 987, 990 (3d Cir. 1988). As a general matter, a cause of action accrues at the
time of the last event necessary to complete the tort, usually at the time the plaintiff
suffers an injury. See United States v. Kubrick, 444 U.S. 111, 120 (1979). However, the
continuing violations doctrine constitutes an equitable exception to the timely filing
requirement. West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Under this
doctrine, when a defendants conduct is part of a continuing practice, an action is timely
so long as the last act evidencing the continuing practice falls within the limitations
period; in such an instance, the court will grant relief for the earlier related acts that
would otherwise be time barred. Brenner v. Local 514, United Bhd. of Carpenters and
Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). To benefit from the doctrine, a
plaintiff must establish that the defendants conduct is more than the occurrence of
isolated or sporadic acts, West, 45 F.3d at 755, and the doctrine does not apply when
plaintiffs are aware of the injury at the time it occurred. Morganroth & Morganroth v.
Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003).
In this case, the District Court noted that Muhammad filed his complaint on July
30, 2008, and concluded that the statute of limitations barred his claims related to conduct
occurring before July 30, 2006. However, Muhammad argued that the Pennsylvania
court defendants repeated denials of accommodations amounted to a series of continuing
violations bringing all such conduct within the limitations period. We agree with the
6

District Court, as Muhammads allegations make clear that he was aware at the time that
each of his requests for an accommodation was denied -- beginning as early as 2004 -that the absence of accommodations would adversely affect his ability to represent
himself. The District Court correctly reasoned that [e]ach refusal to provide
[Muhammad] with the accommodations to which he claims entitlement was a complete
and independent act, D. Ct. Doc. No. 101, 12, and concluded that the continuing
violations doctrine did not apply because Muhammad should have been aware of each
acts negative impact at the time it occurred.
We disagree, however, with the District Courts decision insofar as it dismissed
Muhammads ADA claims regarding the defendants purported failures to reasonably
accommodate him after July 30, 2006. Under Title II of the ADA, no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity. 42 U.S.C. 12132.
To establish a violation of Title II of the ADA, a plaintiff must allege that: (1) he is a
qualified individual with a disability; (2) he was either excluded from participation in or
denied the benefits of some public entitys services, programs, or activities; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his disability. See id.;
Robertson v. Las Animas Cnty. Sheriffs Dept, 500 F.3d 1185, 1193 (10th Cir. 2007).
The requirements for a claim under 504 of the Rehabilitation Act, 29 U.S.C. 794, are
7

the same as those under the ADA, see Helen L. v. DiDario, 46 F.3d 325, 330 n.7 (3d Cir.
1995), with the additional requirement that a plaintiff alleging a violation of the RA
demonstrate that the violation was committed by a program or activity receiving Federal
financial assistance.3 794(a). Further, a plaintiff can assert a failure to accommodate
as an independent basis for liability under the ADA and RA. See Wis. Cmty. Servs., Inc.
v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006) (en banc). To make out such a
claim, a plaintiff must show that the accommodation he seeks is reasonable, see
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir.
2002), i.e., that it is necessary to avoid discrimination on the basis of disability. 28
C.F.R. 35.130(b)(7).
With regard to the first element under 12132, the District Court assumed that
Muhammad is a qualified individual with a disability, based on his averment that he
suffers from impaired vision as a complication of his diabetes, though the District Court
expressed some skepticism about the severity of his impairment. Regardless of the
District Courts concerns, viewing Muhammads complaint in the light most favorable to
him, he alleged sufficient facts to support his claim that his vision is impaired to the
extent that he cannot read small text, which appears to satisfy the requirement of the
ADA that he be a qualified individual with a disability. See 28 C.F.R. 35.104 (defining
3

Although we disagree with the District Courts analysis of Muhammads ADA

claims, the District Court properly dismissed Muhammads RA claims, as he failed to
allege any facts showing that the Pennsylvania court defendants receive federal
funding.
8

a disability as, inter alia, visual impairments).

Muhammad was next required to demonstrate that he was excluded from the
benefits of some public entitys services, programs, or activities. The District Courts
analysis with respect to this prong is flawed in several respects. First, the District Court
stated that Muhammad failed to allege facts establishing that litigation in the state courts
constitutes a program or activity within the meaning of the ADA. D. Ct. Doc. No. 101,
14. It is not clear what facts the District Court expected Muhammad to allege in that
regard, as courts have recognized a due process right to meaningfully participate in civil
litigation, the violation of which is actionable under the ADA. See, e.g., Lane v. Tenn.,
315 F.3d 680, 682 (6th Cir. 2003) (Among the rights protected by the Due Process
Clause of the Fourteenth Amendment is the right of access to the courts. . . . Parties in
civil litigation have [a] . . . due process right to be present in the courtroom and to
meaningfully participate in the process unless their exclusion furthers important
governmental interests.), affd, 541 U.S. 509 (2004).
Next, the District Court faulted Muhammad for failing to allege facts establishing
that the absence of [the requested] equipment was unreasonable in the circumstances, or
that it impaired his ability to litigate effectively. The District Courts analysis is
problematic because Muhammad was not required to make any showing that the denial of
the requested accommodations was unreasonable. Rather, he bore the initial burden of
demonstrating that his requested accommodations were reasonable, i.e., necessary to
9

permit his meaningful participation; upon making such a showing, the burden shifted to
the defendants to demonstrate that the requested accommodations were unreasonable.
See Oconomowoc, 300 F.3d at 783 (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of
Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002)).
The District Courts latter point -- that Muhammad failed to allege sufficient facts
showing how he was excluded from meaningful participation -- is only partially correct.
The District Court correctly pointed out that Muhammad offered no facts to support his
contention that he was not able to meaningfully participate in certain motions hearings
that did not appear to involve reading, such as a motion to compel discovery, and that
those allegations were therefore insufficient under Iqbal. However, the District Courts
reasoning does not appear to hold water with regard to some of Muhammads other
allegations, such as his inability to review records on appeal so as to prepare arguments
and filings. Even if his pro se complaint did not spell out the impact of each denial of an
accommodation, the complaint makes clear that, on at least some occasions, Muhammad
was unable to participate in the manner a non-visually impaired individual could because
he was not provided with an assistive device.4

Relatedly, the District Court noted that Muhammads argument that his ability to
litigate was impaired was undercut by his statement that he has successfully litigated
on his own behalf for more than 20 years. However, the District Court read his
statement out of context, as it was intended to show that Muhammad has successfully
litigated in other states courts, where he was provided assistance to compensate for
his visual impairment, in contrast to his experience in Pennsylvanias courts, where
10

The District Court also faulted Muhammad for failing to articulate any theory
that would impose liability on the Courts as institutional defendants. D. Ct. Doc. No.
101, 16. However, the ADA imposes liability on any public entity, 12131, which is
defined as any State or local government; [or] any department, agency, special purpose
district, or other instrumentality of a State or States or local government . . . .
12131(1). Thus, the plain language of the ADA subjects state courts to liability for
violations of the statute. Accord Galloway v. Super. Ct. D.C., 816 F. Supp. 12, 19
(D.D.C. 1993) (The Superior Court and the District of Columbia are public entities
within the meaning of the [Americans with Disabilities] Act.).
Finally, the District Court determined that Muhammads complaint failed to
include sufficient facts to demonstrate that he was excluded from participating in his state
court proceedings by reason of his disability. A failure-to-accommodate claim differs
from other ADA claims in that the ADA does not require a failure-to-accommodate
plaintiff to show that his injury was the result of purposeful discrimination. See Good
Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561-62 (7th Cir. 2003).
Rather, the ADAs by reason of language requires a showing of causation: the plaintiff
must demonstrate that, but for the failure to accommodate, he would not be deprived of
the benefit he seeks. See id. In this case, the District Court concluded that because
Muhammad failed to allege facts showing that he was the victim of intentional
his inability to receive accommodations has purportedly stymied his ability to litigate
effectively. See D. Ct. Doc. No. 99, 3-4; D. Ct. Doc. No. 103, 5.
11

discrimination, he failed to state a claim upon which relief could be granted. Because
Muhammad was only required to allege that he was unable to meaningfully participate in
his cases because he did not receive accommodations -- a requirement that he appears to
have satisfied -- the District Courts rationale and conclusion appear incorrect.
In sum, although the District Court correctly concluded that a number of
Muhammads claims were time-barred or failed to state a claim upon which relief could
be granted, the District Court erred in dismissing Muhammads ADA claims for
purported violations occurring on or after July 30, 2008.
Accordingly, we will affirm in part, vacate in part, and remand for further
proceedings. The District Court may wish, on remand, to revisit Muhammads request
for appointment of counsel.

12